United States District Court, Northern District of New York
February 21, 2002
CAROL HOCKESON PLAINTIFF,
NEW YORK STATE OFFICE OF GENERAL SERVICES, NEW YORK STATE DEPARTMENT OF AUDIT & CONTROL, NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, AND FRANK RYAN, DEFENDANTS.
The opinion of the court was delivered by: Honorable Lawrence E. Kahn, United States District Judge.
DECISION AND ORDER
Plaintiff commenced this action alleging sexual harassment in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. ("Title VII"), and New York's Human Rights Law, N.Y. Exec. Law
§§ 296 and 297 ("HRL"). Defendants New York State Office of General
Services ("OGS"), New York State Department of Audit and Control
("DAC"), and New York State Department of Civil Service ("DCS"), move to
dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2), (5) and (6).
Defendant Frank Ryan moves to dismiss the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6) and/or for summary judgment pursuant to
Fed.R.Civ.P. 56. For the reasons stated herein, defendants DAC and DCS
are dismissed from the instant action; defendant Ryan is dismissed from
the instant action for lack of jurisdiction; and defendant OGS's Motion
to Dismiss is granted in part and denied in part.
Beginning on August 5, 1999, Plaintiff was employed as a System Support
Aide by the New York State Office of General Services. As a new
employee, she was placed on probation for a period up to six months.
Plaintiff's immediate supervisor was Alan Arnold. Plaintiff's office
consisted of herself, six other employees (all men), her supervisor, Alan
Arnold, and Arnold's supervisor, Marge Calyer (a woman). In her
Complaint, Plaintiff alleges that she was subjected to harassment, a
hostile work environment, discrimination on the basis of her national
origin, retaliation, and constructive discharge.
The alleged discriminatory acts consist of: 1) a co-worker with a
screensaver of a woman's breasts with cat's eyes in place of the
nipples; 2) sexually explicit e-mails sent to her by another co-worker;
3) defendant Ryan's comment that "we're not used to having a woman
around"; 4) when Plaintiff asked Ryan about problem solving techniques or
solutions, he stated that she has to "sink or swim"; 5) defendant Ryan
asked Plaintiff to place orders with computer parts suppliers; 6)
defendant Ryan used the term "guinea-wop" which Plaintiff found
offensive, being a woman of Italian descent (defendant Ryan later
apologized for his remark); 7) when Plaintiff was seated at a vacant desk
near the office door, defendant Ryan's statement that her next move would
be out the door; 8) Plaintiff was not invited to a New Year's Party that
most of the other office workers attended; 9) Plaintiff was placed on a
second probationary period. Plaintiff alleges that these acts amount to
discrimination, harassment and a hostile work environment. Furthermore,
she claims these acts resulted in her constructive discharge "because she
could not take it anymore."
A. Dismissal Standard of Review
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for "failure to
state a claim upon which relief can be granted," must be denied "unless
it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim [that] would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); accord Hishon v. King & Spalding,
467 U.S. 69 (citing Conley and reversing dismissal for failing to state a
claim of discrimination under Title VII of the Civil Rights Act of
1964). "The issue is not whether a plaintiff is likely to prevail
ultimately, `but whether the claimant is entitled to offer evidence to
support the claims. Indeed it may appear on the face of the pleading
that a recovery is very remote and unlikely but that is not the test.'"
Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (additional
citation omitted). Courts apply this standard with even greater force
where the complaint arises from alleged civil rights violations. See
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). In assessing the
sufficiency of a pleading, "all factual allegations in the complaint must
be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991)
(citations omitted), and all reasonable inferences must be construed in
favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d
Cir. 1988) (applying the principle of construing inferences in favor of
plaintiff). As the Second Circuit has stated, when determining the
sufficiency of the claim for Rule 12(b)(6) purposes,
consideration is limited to the factual allegations in
[the] complaint, to documents attached to the
complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be
taken, or to documents either in plaintiffs'
possession or of which plaintiffs had knowledge and
relied on in bringing suit.
Brass v. American Film Technologies, Inc., 987 F.2d 142
, 150 (2d Cir.
A complaint should not be dismissed unless it appears that no
construction of the facts would permit the plaintiff to prevail. See
Hughes v. Rowe, 449 U.S. 5, 10 (1980); Bass v. Jackson, 790 F.2d 260, 262
(2d Cir. 1986). The Rules do not require the plaintiff to set out in
detail the facts upon which the claim is based, but only that a defendant
be given "fair notice of what the . . . claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Individual allegations, however, that are so baldly conclusory that they
fail to give notice of the basic events and circumstances of which the
plaintiff complains are meaningless as a practical matter and, as a matter
of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987) (applying this standard to a complaint based upon civil
rights statutes). As the party moving for dismissal, Defendant has the
burden of proving, beyond doubt, that Plaintiff can prove no set of facts
in support of her claim. See Conley v. Gibson, 355 U.S. 41, 45-46
(1957). It is with this standard in mind that the Court addresses the
B. Plaintiff's Claims
As a preliminary matter, Plaintiff withdraws all causes of action
against defendants DAC and DCS. The present action is therefore
dismissed against these two defendants. Plaintiff also withdraws her HRL
cause of action against OGS. Plaintiff also withdraws her Title VII
cause of action against defendant Ryan. Remaining in the instant action
are Plaintiff's Title VII claim against defendant OGS, and her HRL claim
against defendant Ryan.
Plaintiff alleges: 1) a hostile work environment; 2) sexual
harassment; 3) discrimination based on national origin; 4) retaliation;
and 5) constructive discharge, in violation of Title VII and New York's
HRL. The courts have repeatedly noted that claims brought under New York
State's HRL are analytically identical to claims brought under Title
VII. See, e.g.,
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 & n. 6
(2d Cir. 1996).
1. Defendant OGS
a. Hostile Work Environment and Harassment.
Accepting all factual allegations in Plaintiff's Complaint as true, and
construing all reasonable inferences in her favor, the Court finds that
Plaintiff's Complaint gives defendant OGS fair notice of her hostile work
environment and harassment claims, and the grounds upon which they rest.
In order to prevail on a hostile environment and sexual harassment claim
under Title VII, Plaintiff must establish two elements. First, she must
prove that the harassment was "sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal quotations omitted). Second, Plaintiff must show that a
specific basis exists for imputing the conduct that created the hostile
environment to the employer. Perry v. Ethan Allen, Inc., 115 F.3d 143,
149 (2d Cir. 1997). An employer is liable for co-worker harassment if
"the employer either provided no reasonable avenue for complaint or knew
of the harassment but did nothing about it." Id. (quoting Karibian v.
Columbia University, 14 F.3d 773, 780 (2d Cir. 1994)).
The Supreme Court in Harris instructed courts to determine whether an
environment is sufficiently hostile or abusive by "looking at all the
circumstances," including the "frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris, 510 U.S. at 23. Thus, to prevail
Plaintiff must show that her workplace was permeated with discriminatory
intimidation, ridicule, or insult that was sufficiently severe or
pervasive to alter the conditions of her employment. Gallagher v.
Delaney, 139 F.3d 338, 347 (2d Cir. 1998).
Plaintiff has alleged numerous acts that, taken together, could
reasonably make out a cause of action for a hostile or abusive work
environment. Plaintiff has alleged multiple acts she finds humiliating
and/or offensive that could reasonably be seen to interfere with her work
performance even though most of the alleged acts were not directed toward
her personally, rather they can be seen to have created a discriminatory
environment. It is not the duty of this Court assess whether the
allegations, if proved true, would allow Plaintiff to ultimately
prevail, but whether Defendants are given adequate notice of the
Plaintiff's claims and the grounds upon which those claims rest.
Defendant OGS's Motion to Dismiss the hostile work environment and
harassment claims is DENIED.
b. Discrimination Based on National Origin
Plaintiff claims only one instance of alleged discrimination based on
national origin. Specifically, she claims that defendant Ryan responded
to her request for directions to a training session by telling her that
the session would be held "between the Guinea-Wop place and the Pollack
place." Complaint ¶ 22. One comment, though offensive, is not severe
enough to sufficiently affect the conditions of employment and result in
discrimination. See e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
67 (1986) (stating that the "utterance of an . . . epithet which
offensive feelings in a employee," is not severe enough to sufficiently
affect the conditions of employment to implicate Title VII); see Kotcher
v. Rosa and Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d Cir.
1992) (holding that isolated incidents or episodic conduct will not
support a Title VII claim because the "incidents must be repeated and
continuous; isolated acts or occasional episodes will not merit
relief"); see also Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62, 69 (2d Cir. 2000) ("Incidents that are few in number and
that occur over a short period of time may fail to demonstrate a hostile
work environment.") (internal quotations omitted). Furthermore,
Plaintiff does not allege that such comments were in reference to her and
her ethnicity. In sum, Plaintiff has not alleged facts sufficient to
state a cause of action for discrimination based on national origin.
Accordingly, Defendant's Motion to Dismiss as to Plaintiff's
discrimination based on national origin cause of action is GRANTED.
c. Constructive Discharge
A "constructive discharge" occurs when an employer "deliberately makes
an employee's working conditions so intolerable that the employee is
forced into an involuntary resignation." Pena v. Brattleboro Retreat,
702 F.2d 322, 325 (2d Cir. 1983) (internal quotations omitted). Plaintiff
must establish that the "employer deliberately created working conditions
that were `so difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign.'" Spence v.
Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (quoting Pena, 702
F.2d at 325). This standard contains two separate elements: first, that
the employer acted deliberately, and second, that the conditions were
such that a reasonable employee in the plaintiff's shoes would have been
compelled to resign. See Ternullo v. Reno, 8 F. Supp.2d 186, 190-91
(N.D.N.Y. 1998) (citing Levendos v. Stern Entertainment, Inc.,
909 F.2d 747, 753 (3d Cir. 1990)).
Plaintiff argues that the defendants, Ryan in particular, deliberately
created a difficult and unpleasant working condition "by telling her that
she had to `sink or swim' and that `one more step and she was out the
door.'" Plaintiff asserts that the "stress and humiliation" resulting
from these comments left her "no alternative but to resign." These
allegations are insufficient. The second element, whether a reasonable
employee in the plaintiff's shoes would have felt compelled to resign, is
an objective determination based upon the conditions deliberately created
by the employer. "Success does not depend upon the plaintiff's
subjective beliefs." Phillips v. General Dynamics Corp., 811 F. Supp. 788,
792 (N.D.N.Y. 1993).
Plaintiff's allegations, at most, make out a case of criticism of her
job performance. This cannot result in a finding of constructive
discharge. See Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156 (2d
Cir. 1993) (allegations that employer intentionally criticized employee's
job performance and made conditional threats of termination if
performance did not improve is not sufficient); Stetson v. NYNEX Service
Co., 995 F.2d 355 (2d Cir. 1993) (participating in early retirement
option because plaintiff was dissatisfied with his assignments, criticisms
of his work, and compensation did not support claim of constructive
discharge). Even assuming arguendo that placing Plaintiff on an extended
probationary period was a deliberate act to coerce her into resigning,
Plaintiff would still not be able to make out a prima facie case of
constructive discharge. See Muller v. United States Steel Corp.,
509 F.2d 923, 929 (10th Cir. 1975) (unfavorable job
assignments and discriminatory failure to promote insufficient), cert.
denied, 423 U.S. 825 (1975). The allegations in the Complaint are
insufficient to make out a claim of constructive discharge. Plaintiff's
constructive discharge claim is therefore dismissed. Defendant OGS's
Motion to Dismiss as to the constructive discharge claim is GRANTED.
In order to establish a prima facie claim of retaliation, Plaintiff
must show that: 1) she engaged in a protected activity; 2) the employer
was aware of the activity; 3) the employer took adverse action against
Plaintiff; and 4) there is a causal connection between the protected
activity and the adverse action. See Tomka v. Seiler Corp., 66 F.3d 1295,
1308 (2d Cir. 1995); Distasio v. Perkin Elmer Corp., 157 F.3d 55
, 66 (2d
Cir. 1998); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.
1996). Here, Plaintiff has not alleged sufficient facts to establish a
claim of retaliation.
Nowhere in Plaintiff's Complaint does she allege facts sufficient to
establish any element of retaliation. Plaintiff alleged that the adverse
actions taken against her were: 1) that she received a poor evaluation
from her supervisor that resulted in an extended probationary period; and
2) that defendant Ryan would either mentor Plaintiff or become her
supervisor. Plaintiff does not allege any adverse employment action.
There was no firing, demotion, reassignment or change in Plaintiff's
responsibilities that could be seen as an adverse employment action.
There can be no cause of action for retaliation absent an adverse
employment action. Plaintiff's retaliation claims is therefor
dismissed. Defendant OGS's Motion to Dismiss as to the retaliation claim
2. Defendant Ryan
Though not specifically articulated, Plaintiff's Complaint charges
individual defendant Ryan with "aiding and abetting," a violation of the
HRL, N.Y. Exec. Law § 296(6) (McKinney 2001)*fn1
, in that defendant
Ryan created a sexually offensive and hostile atmosphere which permeated
Plaintiff's workplace. For the reasons that follow, defendant Ryan is
dismissed from the instant action.
Under New York law, even if an employer can be held liable for
employment discrimination under the HRL, individual liability for such
discrimination cannot be imposed on an employee "if he is not shown to
have any ownership interest or any power to do more than carry out
personnel decisions made by others." Patrowich v. Chemical Bank,
63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 660 (1984). Defendant Ryan had
neither an ownership interest nor any supervisory power over Plaintiff.
Defendant Ryan cannot be held liable for violations of the HRL under the
reasoning in Patrowich.
In Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), however, the
Second Circuit held that Patrowich did not apply to claims under N.Y.
Exec. Law § 296(6). See Tomka, 66 F.3d at 1317. Based on the
language of § 296(6), the Tomka Court, "distinguished Patrowich by
holding that a defendant who actually participates in the conduct giving
rise to a discrimination claim may be held personally liable under [N.Y.
Exec. Law § 296(6)]." Tomka, 66
F.3d at 1317 (emphasis added). New York Courts have largely disagreed
with the analysis of the Tomka decision, and some federal courts have
joined in the criticism. See Trovato v. Air Express Int'l, 238 A.D.2d 333,
334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997) (criticizing Tomka and
following Patrowich by rejecting aiding and abetting liability under §
296(6)); Cohen v. Alexander's Inc., 1987 WL 113754 (N.Y.Sup.Ct. Aug. 14,
1987) (rejecting aiding and abetting liability under § 296(6) based on
its reading of Patrowich); Bush v. Raymond Corp., 954 F. Supp. 490,
497, n. 4 (N.D.N.Y. 1997) (noting the criticism of the Tomka decision and
that the Tomka decision arguably renders the holding of the New York Court
of Appeals meaningless); Falbaum v. Pomerantz, 891 F. Supp. 986,
992 (S.D.N.Y. 1995) (dismissing § 296 claims against individual
defendants: "the limitation embodied in the statutory definition of
`employer' and in Patrowich, could be easily evaded by alleging claims
either under an aiding and abetting or retaliation theory. . . . The
various parts of a statute should be construed to give meaning to all");
Johnson v. A.P. Products, Ltd., 934 F. Supp. 625, 629-30 (S.D.N.Y.,
1996) (noting the criticism of the Tomka holding and reluctantly following
the Second Circuit's precedent).
At least two New York courts have adopted the reasoning of Tomka and
recognized that a former employee could maintain a cause of action for
discrimination against another employee as an aider and abettor. See
Murphy v. ERA United Realty, 251 A.D.2d 469, 471-73, 647 N.Y.S.2d 415,
417-18 (2d Dep't 1998); see also Steadman v. Sinclair, 223 A.D.2d 392,
393, 636 N.Y.S.2d 326, 326 (1st Dep't 1996) (1st Dep't 1996) (citing
Tomka for the proposition that defendant may be held individually liable
for retaliation as an aider and abettor under N.Y. Executive Law §
Given the unsettled nature of the state of the law in New York
regarding § 296(6), especially the repudiation by many New York
courts of the Tomka holding, this Court declines to exercise supplemental
jurisdiction over these State law claims. Under 28 U.S.C. § 1367(c),
"[t]he district courts may decline to exercise supplemental jurisdiction
over a claim . . . if (1) the claim raises a novel or complex issue of
State law, . . . or (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction."
As previously noted, the New York Court of Appeals has held that
individuals are subject to liability under the HRL only if they have an
ownership interest in the company or supervisory authority over the
plaintiff. See Patrowich, 63 N.Y.2d at 542, 483 N.Y.S.2d at 660. The New
York Court of Appeals has not decided the issue of liability on an aiding
and abetting claim, and the lower courts in New York are divided on the
issue, though most have criticized the Tomka decision. The Appellate
Division, First Department has adopted Tomka's holding that employee
supervisors may be held individually liable as aiders and abetters, see
Steadman v. Sinclair, 223 A.D.2d 392, 636 N.Y.S.2d 325, 326 (1st Dep't
1996), and the Second Department, as well as at least one lower New York
court, have disagreed with Tomka. See Trovato v. Air Express Int'l,
238 A.D.2d 333, 334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997) (rejecting
Tomka and holding that there is no individual liability even under §
296(6) for individuals who are not "employers and employee-owners or
those with specified authority")*fn2; Foley v. Mobil Chemical Co.,
170 Misc.2d 1, 647 N.Y.S.2d 374, 380-82 (Sup.Ct. Monroe Cty. 1996)
(holding that § 296(6) only applies to parties outside the employment
relationship who may assist in employment discrimination).
Since the New York courts are split on this issue, this Court declines
to exercise jurisdiction over this claim. See Houston v. Fidelity, No.
95 Civ. 7764, 1997 WL 97838, at *10 (S.D.N.Y. 1997) (declining to
exercise supplemental jurisdiction over the individuals sued under §
296(6) of the HRL even where, as here, the claim involved a common
nucleus of operative fact with the federal discrimination claim). "Given
the unsettled state of the law, it is possible that the parties would
have a `surer-footed' reading of the extent of aiding and abetting
liability in state court." Houston, 1997 WL 97838, at *10 (citing United
Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)).
Furthermore, the presence of an individual defendant who could be
liable under State law for conduct that would not give rise to liability
under federal law will create practical difficulties at trial. The risk
of jury confusion is considerable. Therefore, defendant Ryan's Motion to
Dismiss is granted for lack of jurisdiction.
For the reasons stated above, it is hereby:
ORDERED, that defendants New York State Department of Audit and Control
and New York State Department of Civil Service are DISMISSED from the
instant action; and it is further
ORDERED, that defendant New York State Office of General Services'
Motion to Dismiss (docket #9) is GRANTED in part and DENIED in part; and
it is further
ORDERED, that defendant OGS's Motion to Dismiss the hostile work
environment and harassment claims is DENIED; and it is further
ORDERED, that defendant OGS's Motion to Dismiss the discrimination
based on national origin claim is GRANTED; and it is further
ORDERED, that defendant OGS's Motion to Dismiss the constructive
discharge claim is GRANTED; and it is further
ORDERED, that defendant OGS's Motion to Dismiss the retaliation claim is
GRANTED; and it is further
ORDERED, defendant Ryan's Motion to Dismiss (docket # 16) is GRANTED as
to all causes of action against him for lack of jurisdiction; and it is
ORDERED, that the Clerk of the Court shall serve copies of this order by
regular mail upon the parties to this action.
IT IS SO ORDERED.